Immigration Update: November/December 2021

In response to the Omicron variant, President Biden issued A Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease 2019 on November 26, 2021. Effective November 29, 2021, non-citizens who have been physically present in one of the seven countries –  the Republic of Botswana, the Kingdom of Eswatini, the Kingdom of Lesotho, the Republic of Malawi, the Republic of Mozambique, the Republic of Namibia, the Republic of South Africa, and the Republic of Zimbabwe –  within 14 days prior to travel will not be admitted into the United States (“U.S”). This restriction includes those individuals seeking to enter in nonimmigrant visa status for work, business travel, school, etc., and includes very limited exceptions, including exceptions for U.S. citizens and certain non-citizens who are lawful permanent residents (Green Card holders), or the immediate family members of U.S. citizens. This proclamation will remain in effect indefinitely, until rescinded by the President in a subsequent executive action.

The USCIS has again extended its flexibility in responding to Request For Evidences (RFE), Notice of Intent to Deny (NOIDs) and other requests, considering them timely if they are received within 60 calendar days of the original due date. This latest extension of flexibility due to COVID-19 applies to requests where the issuance date listed on the request, notice, or decision is between March 1, 2020 and January 31, 2022, inclusive.

The Centers for Disease Control and Prevention (CDC), located within the Department of Health and Human Services (HHS), announces an Amended Order requiring negative pre-departure COVID-19 test results or documentation of recovery from COVID-19 for all airline or other aircraft passengers arriving into the United States from any foreign country. This Amended Order was signed by the CDC Director on October 25, 2021, and supersedes the previous Order signed by the CDC Director on January 25, 2021. Effective December 6, 2021, all individuals two years or older traveling into the United States via air travel will need to show proof of a negative result of a qualifying COVID-19 viral test taken no more than one day before departure from a foreign country. This requirement applies regardless of one’s vaccination status or citizenship.

Individuals who recently recovered from COVID-19 may instead travel with documentation of recovery COVID-19 viral test result on a sample taken no more than 90 days before departure along with a letter from a licensed healthcare provider or a public health official confirming they were cleared to travel).

Pursuant to a settlement agreement reached on November 10, 2021 in a federal lawsuit,USCIS has changed its employment authorization policies with respect to some exceptional cases in limited H-4 matters and for L-2 nonimmigrants. The settlement provides structural changes for certain of these dependent spouses who have experienced long-delayed processing times for their EAD applications.

 L-2 spouses will be considered authorized to work incident to status, and will not be required to complete a separate EAD application once they are issued an I-94 admission record noting their status as an L-2 or E spouse. In the settlement agreement, USCIS and “U.S Customs and Border Protection (“CBP”) have committed to implementing these I-94 annotations within 120 days of the final settlement agreement. 

However, for the H-4 category, this relief is extremely limited. H-4 spouses who are eligible for work authorization but are either (1) applying for their first-ever EAD card, or (2) submitting an application for a new EAD after their prior one has already expired, will continue to be ineligible for work authorization until their application has been approved and the EAD issued.

On October 20, 2021, USCIS  issued a Federal Register notice with information on how to apply for employment authorization for eligible Hong Kong residents covered under the president’s Aug. 5 memorandum directing Deferred Enforced Departure (DED) for 18 months, through Feb. 5, 2023.

This applies only to certain eligible Hong Kong residents who (1) were present in the United States as of Aug. 5, 2021, (2) have continuously resided here since that date, and (3) meet other eligibility criteria described in the President’s memorandum. For purposes of this DED policy, Hong Kong residents are individuals of any nationality, or without nationality, who have met the requirements and have been issued a Hong Kong Special Administrative Region (HKSAR) passport, a British National Overseas passport, a British Overseas Citizen passport, a Hong Kong Permanent Identity Card, or an HKSAR Document of Identity for Visa Purposes.

There is no application for DED. Eligibility requirements for Hong Kong residents who are covered under DED are based on the terms described in the President’s directive and any relevant implementing requirements established by the Department of Homeland Security.Eligible Hong Kong residents may apply for an Employment Authorization Document by submitting a completed Form I-765, Application for Employment Authorization. Eligible Hong Kong residents covered by the president’s DED memorandum may also receive travel authorization. Individuals must file Form I-131, Application for Travel Document, for advance parole if they wish to travel based on DED.

In November 2021, the Department of Homeland Security (DHS) will allow foreign nationals who are fully vaccinated to enter the United States from Canada or Mexico by land or ferry for “non-essential” activities such as tourism and personal visits. The COVID vaccine requirement will replace the current border ban on “non-essential” travel for these foreign nationals. In January 2022, All inbound foreign national travelers entering the United States from Canadian or Mexican land (or ferry) borders – whether entering for “essential” or “non-essential” purposes – must be fully vaccinated in order to enter the United States. This includes those traveling for work and business who are currently permitted to travel (though perhaps with heightened border official questioning) under the existing border restrictions.

In Arreaga Bravo v. Att’y General, 590 F. App’x 145 (3d Cir. 2014), the Third Circuit considered an Immigration Judge (“IJ”) grant of Convention Against Torture (“CAT”) relief, which had been reversed by the Board of Immigration Appeals (“BIA). In reversing, the BIA stated that it was not “sufficiently persuade[d]” by the IJ’s opinion and “could not agree” with the IJ’s conclusion that future torture was likely. The BIA applied a similar analysis to the acquiescence prong of the CAT analysis. The Third Circuit quite correctly held that, by doing so, the BIA failed to apply clear error review or to give adequate deference to the IJ’s opinion.

Arreaga-Bravo, a 31-year-old from Guatemala, arrived in the U.S. in 2016. In removal proceedings, she sought withholding of removal under the Convention Against Torture (CAT), claiming that she had fled Guatemala to escape harassment and sexual violence by the Mara 18 gang. She discussed the rape of her 15-year-old sister, which was not reported to the police because the nearest police station was four hours away; after the family moved, another sister was raped but the police never investigated. The family moved again. Arreaga-Bravo’s friend was raped by multiple men; in 2016, Arreaga-Bravo was targeted by gang members to enlist as a gang girlfriend. Arreaga-Bravo refused and began to receive threats. Eventually, two men grabbed her on the street, pulled out a knife, and threatened to kill her unless she surrendered to the gang.

The IJ granted Arreaga-Bravo CAT relief, finding that she was generally credible, candid, and forthcoming, that it is more likely than not that Arreaga-Bravo will be harmed if she returns to Guatemala, and that the Guatemalan government would acquiesce in Arreaga-Bravo’s torture

The BIA reversed, finding that it was not “sufficiently persuade[d]” that Arreaga-Bravo faces a particularized risk of torture and that it was “unable to agree” with the IJ’s conclusions. The Third Circuit vacated, finding that rather than defer to the IJ’s factual findings and review for clear error, the BIA inserted itself into the fact-finder role and disagreed with the IJ’s weighing of the evidence.

In a published opinion, the Fifth Circuit held that the Matter of A-R-C-G-, where BIA earlier held that survivors of DV could receive asylum as a member of particular social group protected under U.S. law, is an unreasonable interpretation of the INA on the asserted ground that “unable to leave” groups are circular as a matter of law. In 2018, Matter of A-R-C-G- was pushed aside by a decision of -Attorney General Jeff Sessions, claiming that domestic violence survivors are generally not entitled to asylum. Earlier this year, Matter of A-R-C-G- was reinstated by the Biden administration, but the Fifth Circuit has now overruled that decision. However, this court decision will prevent many immigrant survivors of horrific abuse from receiving protection in the United States. 
Yesenia Esperanza Orellana-Tobar and her son, natives and citizens of El Salvador, petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration   judge’s (“IJ”) decision denying their application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). The court denied the petition for review.
The panel held that the there is substantial evidence that supports the agency’s determination that petitioners failed to establish the harm they experienced or fear was or would be on account of a protected ground’  and stated that going to a judge “only” once to report domestic violence (DV) when a partner violates a restraining order twice is insufficient to meet the unable/unwilling test.

The DHS Secretary just issued a permanent immigration enforcement priorities memo that will supersede the interim priorities memo from earlier this year. The memo does, at least, make clear that “[t]he fact that an individual is a removable noncitizen … should not alone be the basis of an enforcement action.” It then sets out three categories of people who are priorities for removal:

 (1) People “engaged in or suspected of terrorism or espionage, or terrorism-related or espionage-related activities, or who otherwise poses a danger to national security.” This largely mirrors the interim memo.

 (2) People “who pose[] a current threat to public safety, typically because of serious criminal conduct.” Unlike the interim memo, which had strict, narrow requirements for this category, the new memo takes a “totality of the circumstances approach” here. All of the listed aggravating factors go to the seriousness of criminal conduct. Listed mitigating factors include age, lengthy presence, “mental condition[s],” “status as a victim of crime or victim, witness, or party in legal proceedings,” the impact of removal on family in the U.S, eligibility for humanitarian or other relief, military or public service, time since offenses and evidence of rehabilitation, and vacated/expunged convictions.

 (3) People who Entry Without Inspection (“EWI”) after November 1, 2020, or do so in the future, on the (unexplained) basis that they are somehow ”threat[s] to border security.” This mirrors the earlier memo – and does not move forward the cutoff date for entry.

 The new memo took effect on November 29, 2021.

Following the Government of Mexico’s independent decision to accept individuals returned pursuant to Migrant Protection Protocols (“MPP”), the DHS and Department of  Justice will begin the court-ordered re-implementation of the program on or around December 6, 2021. The current guidance can be found here. MPP enrollments will take place across the Southwest Border, and returns to Mexico will take place at seven ports of entry in San Diego, Calexico, Nogales, El Paso, Eagle Pass, Laredo, and Brownsville.To comply with the court order, DHS will be ready to reimplement MPP once the Government of Mexico makes a final and independent decision to accept the return of individuals enrolled in the program, subject to certain humanitarian improvements. These key changes include a commitment that proceedings will generally be concluded within six months of an individual’s initial return to Mexico; opportunities for enrollees to secure access to, and communicate with, counsel before and during non-refoulement interviews and immigration court hearings; improved non-refoulement procedures; and an increase in the amount and quality of information enrolled individuals receive about MPP. DHS will exclude particularly vulnerable individuals from being enrolled in MPP. In addition, DHS will provide COVID-19 vaccinations for all persons enrolled in MPP. Vulnerability assessments should result in people with known mental/physical health issues (including pregnancy), people of “advanced age,” and people likely to be persecuted on account of gender identity/sexual orientation being excluded from MPP. CBP is supposed to ask affirmatively about fear of returning to Mexico. The U.S. government also promises access to counsel, which amounts to use of a telephone in the 24-hour period before a non-refoulement interview. However, this access to telephones will be futile if there no access to information regarding lawyers is provided before court hearings.

The  Fifth Circuit affirmed an IJ and BIA conclusion that Mexico was able and willing to protect homosexual men from persecution, despite a solid factual record to the contrary. The petitioner entered the United States from Mexico without authorization. The BIA ordered his removal, rejecting all his claims, including those authorities in Mexico have been unable or unwilling to prevent his persecution for being homosexual. He testified at the hearing before an IJ that he and his partner had revealed their relationship to their families but remained discreet in public to avoid harassment.

After applying for admission in May 2018, Valdez Coria underwent a credible-fear interview in early June. He was then served with a notice to appear charging that he was removable. At his first appearance before an IJ, Valdez Coria admitted the factual allegations in the notice to appear and sought asylum, withholding of removal, and relief under the Convention Against Torture (CAT). He submitted documents in support of his application, including country reports, news articles, and his own declaration.

The IJ conducted an evidentiary hearing in November 2018 in which Valdez Coria testified. The IJ determined that Valdez Coria was credible when he described the deplorable events that led him to flee Morelia. The IJ concluded that the elements of past persecution had been shown, except for the requirement that the Mexican government was unable or unwilling to help him. For that reason, the IJ denied Valdez Coria’s application.Valdez Coria appealed to the BIA, and the agency agreed with the IJ that Valdez Coria failed to establish that the Mexican government was unable or unwilling to control the private actors who harmed him in the past or who may harm him in the future. He timely filed a petition for review with the Fifth Circuit. The judgment can be found here.

In Zometa Orellana v. Garland,, the Sixth Circuit held that the BIA’s rejection of the Particular Social Group (“PSG”), “El Salvadorian women of childbearing age in domestic partnerships” as not cognizable, and the subsequent vacatur of Matter of A-B- I (27 I&N Dec. 316 (A.G. 2018)), required remand. In so doing, the Sixth Circuit admonished the IJ and BIA of their “obligations under international law to extend refuge to those who qualify for such relief” and that they “bear the responsibility for ensuring that refugee protection is provided where such protection is warranted by the circumstances of an asylum applicant’s claim.”

On the unable/unwilling issue, the Sixth Circuit held that respondent’s failure to report to the police was not dispositive, noting that a failure to address country conditions evidence in this inquiry renders the conclusion not supported by substantial evidence.

On internal relocation, the Sixth Circuit held that the IJ and BIA’s conclusion, that the respondent could relocate within El Salvador by not using a phone and not telling her abuser where she was, was also not supported by substantial evidence because there was no record evidence supporting that conclusion.

In Funez-Munguia v. Garland, the Fourth Circuit, held that the IJ and BIA failed to apply the one-central-reason standard and suggested that the person seeking asylum was targeted only because her family relationship meant she might have leverage. The court did not go so far as to reverse outright on nexus, because of record-specific issues, but the opinion is nevertheless a useful corrective to the tendency of IJs and the BIA to ascribe only non-protected motives to conduct.

The case involved persecution by a gang member and a Particular Social Group (“PSG”) involving being a family member of a particular apartment building manager. The IJ denied asylum solely on nexus grounds, holding that the person seeking asylum had been persecuted solely because the gang member thought she was trying to have her family member evict him, and the BIA affirmed. The Fourth Circuit reversed the holding.

The memo notes that “EOIR adjudicators have the authority … to administratively close a variety of cases,” and that administrative closure is governed by Matter of Avetsiyan, 25 I&N Dec. 688 (BIA 2012), and Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017). The memo then says that adjudicators should focus on cases in which the respondent is an immigration enforcement priority and those in which the respondent desires a full adjudication, and that using administrative closure in other cases will help adjudicators do so. To that end, the memo says that unopposed motions to administrative  close cases filed by Department of Homeland Security (“DHS”) should generally be granted.

The memo also encourages the use of administrative closure where the respondent has a pending petition with another agency, where a respondent has an approved petition and is waiting for a visa, or to allow a respondent to file such a petition. And the memo says that unopposed motions filed by respondents in these situations should generally be granted. Where DHS opposes, the memo reminds IJs that the question becomes how strong the reason for opposition is and that DHS does not get a veto over administrative closure requests.

Finally, the memo encourages IJs to deal with administrative closure in advance of merits hearings and, to that end, to send scheduling orders that solicit the parties’ views on closure/prosecutorial discretion well in advance of hearings. If the issue is not addressed in advance, the motion tells IJs that they should, at the outset of an individual hearing, ask whether the respondent is a priority and, if not, whether DHS intends to grant PD of some sort and whether the parties want the case to be administratively closed.

In Matter of Kagumbas, 28 I&N Dec. 400 (BIA 2021),the BIA held that an IJ can inquire into the bona fides of a marriage that is the basis of an approved I-130 when considering an application for adjustment of status under Section 245(a) of the Immigration and Nationality Act, 8 U.S.C. § 1255(a) (2018).

The respondent had an approved I-130 petition, but the IJ questioned respondent, respondent’s wife, and respondent’s mother-in-law as to the bona fides of the marriage. When respondent’s wife provided some answers that were inconsistent with respondent’s, the IJ found that the marriage was not bona fide at its inception and denied the application for adjustment of status. The BIA upheld the principle of law, holding that an IJ can deny adjustment of status despite an approved I-130 if the IJ finds that the underlying marriage is not bona fide.There are some troubling implications of this decision, including the collateral estoppel/claim-preclusive effect of a USCIS-adjudicated I-130 petition (see, e.g., Matter of Barragan-Garibay, 15 I&N Dec. 77 (BIA 1974)); and the possibility that the respondent could use the approved I-130 (if not revoked by USCIS, because an IJ cannot revoke or cancel an approved I-130) to consular process.

U.S. Citizenship and Immigration Services is issuing updated and comprehensive guidance in the USCIS Policy Manual on adjudicating applications for T nonimmigrant status (or T visas) submitted by victims of human trafficking, including clarifying how applicants establish eligibility.The policy guidance clarifies the physical presence eligibility requirement, the age-based exemption from the requirement to comply with law enforcement requests, and how the agency evaluates involuntary servitude claims.

The BIA in its decision holds that, after Niz-Chavez (141 S. Ct. 1474 (2021)), an Notice To Appear (“NTA”) that lacks the time and place of a hearing does not stop the accrual of physical presence for purposes of voluntary departure, even if a second document provides a hearing time and place: “A notice to appear that does not specify the time or place of a respondent’s initial removal hearing does not end the accrual of physical presence for purposes of voluntary departure at the conclusion of removal proceedings under section 240B(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229c(b) (2018), even if the respondent is later served with a notice of hearing specifying this information. Posos-Sanchez v. Garland, 3 F.4th 1176 (9th Cir. 2021), followed. Matter of Viera-Garcia and Ordonez-Viera, 28 I&N Dec. 223 (BIA 2021), overruled in part.

In Matter of M-F-O, he BIA affirmed the denial of asylum and withholding claims, premised on the Particular Social Group (“PSG”) “indigenous Guatemalan youths who have abstained from joining the street gangs,” because the gang members did not state their intent outright and because the BIA believed that the gangs wanted to recruit everyone. It also affirmed the denial of CAT relief without giving any weight to past torture.